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The Supreme Court - June 24, 2013

The Supreme Court of the United States announced decisions in four cases today:

Fisher v. University of Texas at Austin, No. 11-345: Petitioner, a Caucasian, challenged the University of Texas at Austin’s undergraduate admissions process, in which race is considered as one of various factors, but is not itself assigned a numerical value for each applicant, although the University is committed to increasing minority enrollment on campus. The District Court granted summary judgment to the University on petitioner’s equal protection clause challenge. The Fifth Circuit, in turn, affirmed. The Court today vacated and remanded the Fifth Circuit’s judgment, holding that the Court of Appeals did not apply the correct standard of strict scrutiny.

Vance v. Ball State University, No. 11-556: Petitioner sued her employer, Ball State University (BSU), under Title VII, alleging that a fellow employee created a racially hostile work environment. The District Court granted summary judgment to BSU, holding that it was not vicariously liable for the fellow employee’s actions because that individual was not a supervisor. The Seventh Circuit affirmed. Today, the Court affirmed, holding that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.

Mutual Pharmaceutical Co. v. Bartlett, No. 12-142: The Federal Food, Drug and Cosmetic Act requires FDA approval before marketing any drug and, once approval is obtained, prohibits any unilateral changes to a drug’s label. Respondent was prescribed Clinoril, the brand-name version of the nonsteroidal anti-inflammatory drug (NSAID) sulindac, for shoulder pain. Mutual was the manufacturer. Respondent developed an acute case of toxic epidermal necrolysis resulting in disfigurement, disabilities and near blindness. At the time of prescription, sulindac’s label did not refer to toxic epidermal necrolysis. The FDA recommended changing NSAID labeling a year later to contain an explicit warning about toxic epidermal necrolysis. A jury found Mutual liable in District Court on respondent’s state-law design-defect, failure-to-warn claim and awarded her over $21 million. The First Circuit affirmed, finding that the state-law failure-to-warn claim was not pre-empted by the FDCA under PLIVA, Inc. v. Mensing, 564 U.S. __ (2011) because a generic manufacturer could comply with both federal and state law by simply choosing not to make the drug at all. The Court today reversed the First Circuit’s judgment, holding that, under PLIVA, it was impossible for the manufacturer to comply with both FDCA labeling restrictions and state-law duty to warn and that the First Circuit’s rationale that Mutual could have escaped impossibility by ceasing manufacture was incompatible with the Court’s pre-emption cases.

United States v. Kebodeaux, No. 12-418: Respondent was convicted by a special court-martial of a federal sex offense. After serving his sentence and receiving a bad conduct discharge from the Air Force, he moved to Texas where he registered with state authorities as a sex offender. Congress subsequently enacted the Sex Offender Registration and Notification Act (SORNA), which requires federal sex offenders to register in states where they live, study and work and which applies to offenders who, when SORNA became law, had already completed their sentences. When Respondent moved within Texas and failed to update his registration, the federal government prosecuted him under SORNA, and he was convicted. The Firth Circuit reversed, holding that the federal government lacked the power under Article I’s Necessary and Proper Clause to regulate Respondent’s intrastate movements. Today, the Court reversed the Fifth Circuit, holding that Respondent had been subject to the pre-SORNA Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act at the time of his conviction and that it was within the powers of the Necessary and Proper Clause for the federal government to impose on Respondent the registration requirements of SORNA which only somewhat modified the requirements of the Wetterling Act.

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